Another Plea to the Chief Justice of Pakistan

By Anjum Altaf

Once upon a time there was an amenity plot assigned as a playground to a school in a central part of Karachi. Then, one day, the Government of Pakistan (GoP) took it over and handed it to the Ministry of Defence (MoD) which turned it to commercial use prompting the late Ardeshir Cowasjee to direct “A plea to the Lord Chief Justice” which appeared in this newspaper on 14.6.2009.

Lo and behold, the Lord Chief Justice took note, the case was brought to court, and a judgement pronounced on 18.12.2009 by Justice Jawwad S. Khawaja. What follows from court documents is a summary of this astounding land grab and an update of its status following the judgement.

According to the citizens the 5 acre plot was transferred by GoP to the City District Government Karachi (CDGK) on 12.8.1976 for the Lines Area Redevelopment Project and designated in the Master Plan as an amenity plot to be used as playground. It was subsequently claimed by GoP that while contiguous land was indeed transferred to CDGK, this particular plot was excluded and remained part of the Karachi Cantonment.

Following this reclamation, General Musharraf, the then military ruler, granted on 19.12.2002 a 90 years lease on the plot to the Army Welfare Trust (AWT) at the nominal yearly rent of Rs. 6,020 only. The court noted that contrary to its name that suggests some institutional affiliation with the Pakistan army, the AWT was registered as a Non-Government Organization, a private society, under the Societies Registration Act. It was however a fact that General Musharraf was at the time the ex-officio Patron of the AWT in his capacity of COAS.

On 31.7.2006, the AWT in turn transferred the land to a private party (Makro-Habib Pakistan Limited) by way of a sub-lease for an initial term of 30 years receiving an advance rent of Rs. 100,000,000 based on a variable annual amount of at least Rs. 17,500,000 and a maximum equivalent to 1% of the annual turnover of Makro-Habib which was initially incorporated as a joint venture between SHV, a Dutch multinational, and the House of Habib, a Pakistani corporate group. SHV held 70% of the equity in the venture but later divested its share to the House of Habib with permission to use the ‘Makro’ brand name. After the execution of the sub-lease, Makro-Habib constructed a wholesale centre on the plot.

Following a meticulous examination of the argument advanced by GoP, AWT, and Makro-Habib that the playground was not transferred to CDGK, the Court concluded it was “wholly untenable.” Based on this finding that the land was not the property of the MoD, both its lease of the land to AWT and the subsequent sub-lease to Makro-Habib were declared null and void. Makro-Habib was allowed “three months from the date of the judgement, to remove its structures and installations from the playground, restore it to the same condition as existed on the date of the sub-lease and hand over its vacant possession to the CDGK.”

The Court was also “led to the inescapable conclusion that Government land was virtually thrown away at great financial loss to the Government and in utter disregard of the CLA [Cantonment Land Administration] Rules.”

In addition, the Court referred specifically to a paragraph in a Ministry of Defence Summary for the Chief Executive dated 20.9.2002 which read as follows: “Since Rules do not permit leasing out defence land free of cost, MoD supports payment of nominal premium and rent by AWT, being a welfare organization.” With reference to this paragraph, the Court observed: “We have also noted the cynical play with the CLA Rules” and that the document “presents a damning indictment of dictatorial one man rule.”

The aggrieved parties filed a review petition against the decision which was dismissed by the Supreme Court on 27.8.2015. But even after the dismissal of the review petition, the orders of the Court remain outstanding. The Makro-Habib structure continues to stand although without transacting any business. The result is a lose-lose proposition in which a valuable property is fulfilling neither its original nor its engineered purpose.

This unsatisfactory outcome prompts the following questions: How is it possible that a judgement of the Supreme Court can remain unimplemented for nine years? What is the recourse for citizens if Supreme Court judgements can be stonewalled even after the dismissal of review petitions? Why does the Supreme Court not have the powers to have its judgements implemented?

These are important questions and deserving of another plea to the Lord Chief Justice: Please take suo moto notice of why judgements on prior suo moto notices cannot be implemented. And if they cannot, to explain why the practice deserves to continue in the future.

This opinion appeared in Dawn on April 10, 2018, and is reproduced here with permission of the author. The author is indebted to Dr. Syed Raza Ali Gardezi for his critical review of the facts presented in this opinion. Dr. Gardezi continues to represent the citizens in this case.

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